DENVER (CN) — A Denver judge on Wednesday declined to toss out a case seeking to bar former President Donald Trump from appearing on the 2024 Colorado GOP primary ballot. Trump raised a First Amendment shield against the lawsuit contending his Jan. 6, 2021, speech disqualifies him from holding office under the 14th Amendment, but Second Judicial District Judge Sarah Wallace said she needed to hear the defense’s evidence before deciding the novel question of law.
Six Colorado voters — four registered Republicans and two independents — petitioned Colorado Secretary of State Jena Griswold on Sept. 6 claiming Trump was disqualified from holding office under the Fourteenth Amendment and should therefore be barred from the ballot. Trump filed to intervene once it became clear that Griswold, a Democrat, had no intention of mounting a defense.
On behalf of Trump, attorney Scott Gessler said the voters’ evidence hinged on Trump’s speech, which is protected by the First Amendment.
Gessler cited the 1969 Supreme Court decision in Brandenburg v. Ohio which found the state violated the rights of a KKK leader who wanted to broadcast a rally. Gessler additionally drew parallels between the facts in the ballot case and the 2016 case Nwanguma v. Trump in which a Kentucky judge declined to hold Trump responsible for the actions of supporters who assaulted a protester he demanded be removed from a campaign event.
“If the court doesn’t accept ‘get them out of here’ as incitement, then ‘fight for your country’ and ‘let’s walk down to Pennsylvania Avenue’ doesn’t rise to incitement,” Gessler claimed.
On behalf of the voters, attorney Jason Murray dramatically argued Trump’s Ellipse speech mobilized the angry mob and incited the Jan. 6, 2021, attack on the U.S. Capitol.
“His lies gave the mob a common purpose,” argued Murray, who practices with the firm Olson Grimsley Kawanabe Hinchcliff & Murray.
“Trump’s argument seems to be that the First Amendment displaces the 14th Amendment,” Murray added.
Senior Assistant Attorney General Michael Kotlawrczyk stepped in to ask the court to reject Trump’s motion for a directed verdict on procedural grounds, since the current elections complaint operates on an expedited schedule. The issue must be settled by Jan. 5, 2024, when the secretary of state is required to certify ballots, so Kotlawrczyk argued there is no time to entertain a motion the would likely disrupt the current trial with require review from a higher court.
Wallace said a decision required her to weigh the First Amendment against the 14th Amendment in a way that no court has ever done, and she is unable to do on a lunch break.
“There is clearly a conflict,” Wallace said. “You have on the one hand people being disqualified [from office] for writing a letter to the editor in the 1800s — certainly an issue of speech. On the other, you have an entire body of First Amendment case law.”
Wallace was appointed to the bench by Democratic Governor Jared Polis this year.
Sitting in front of an ornate wooden cabinet, Wallace promised to revisit the issue once she has heard Trump’s evidence. In the back of the otherwise sparsely decorated courtroom, hangs a gold-framed print of the U.S. Constitution, partially obscured by a coatrack.
Passed in the aftermath of the Civil War, the 14th Amendment bars individuals from holding office if they “engaged in insurrection or rebellion” while under the oath of office. The ban can only be overturned by a two-thirds vote in the U.S. House and Senate.
Gerard Magliocca, a professor at Indiana University’s McKinney School of Law testified on his research into the Fourteenth Amendment, which he said was mainly enacted to prevent Confederate officials from returning to power following the Civil War.
Rather than being punitive, Magliocca said the amendment adds a new qualification to hold office for those who have taken a prior oath.
“The oath was central to the limitation,” Magliocca said. “The rational is the oath you take is to the Constitution, and not to the United States generally, so the insurrection would be against the Constitution which you swore an oath to support.”
Magliocca recalled two instances prior to the Fourteenth Amendment being ratified, when Congress blocked elected officials from taking office. In 1867, Philip Thomas of Maryland was barred from taking his seat in the Senate because he had given money to his son who joined the Confederate Army. In 1868, John Young Brown was also blocked from joining the U.S. House of Representatives after he published an editorial that was sympathetic to the Confederacy.
Once the plaintiffs rested, the defense called its first witness: Trump’s national security adviser Kashyap Patel who contested Tuesday’s testimony from Syracuse University law professor William Banks regarding Trump’s ability as president to summon the National Guard to respond to the Jan. 6 attack on the U.S. Capitol. Patel appeared via WebEx.
Former campaign spokesperson Katrina Pearson then appeared via WebEx to testify about different factions of Trump supporters. Pearson distinguished “the crazies” like Infowars host Alex Jones and Stop the Steal organizer Ali Alexander from “the pros” like Women for America First founder Amy Kremer.
“Anytime you’re dealing with grassroots, it’s like herding cats and there is a lot of clashing,” Pearson said.
“I didn’t want them anywhere near the president,” Pearson said referring to Jones and Alexander. “They don’t care about the damage they cause.”
On cross-examination, plaintiffs’ attorney Eric Olson recalled Trump inviting Jones to attend an RNC event and pressed Pearson about a conversation at the White House where Trump had suggested calling in 10,000 National Guard to ensure there wasn’t any trouble on Jan. 6, and chief of staff Mark Meadows had talked him out of it.
Trump had been concerned about counter-protesters sowing trouble among his supporters. In text messages, Pearson told Meadows Trump was being overly dramatic about wanting to start a civil war.
Trump’s defense intends to call four more witnesses in the court trial scheduled to run through Friday.
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